Alexandra Lawson v. Richard A. Woeste ( 2020 )

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1,2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
ALEXANDRA LAWSON APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. CASE NO 2019-CA-001055-OA
CAMPBELL CIRCUIT COURT NO. 14-CI-00672
HON. RICHARD A. WOESTE, JUDGE, APPELLEE
CAMPBELL CIRCUIT COURT, FAMILY
DIVISION
AND
JEREMY VILLARREAL REAL PARTY IN INTEREST
OPINION OF THE COURT BY JUSTICE HUGHES
AFFIRMING
Alexandra Lawson seeks a writ of prohibition to stay a child custody
order entered by the Campbell Circuit Family Court pending her direct appeal.
In the underlying action the trial court ordered that Lawson’s two minor
children relocate from their residence with Lawson in Mississippi to live with
their father, Jeremy Villarreal, in Kentucky. Lawson argues, alternatively, that
the trial court either lacked subject-matter jurisdiction to enter the relocation
order or had the requisite jurisdiction but acted erroneously. The Court of
Appeals denied the writ and, for the reasons stated below, we affirm.
FACTS AND PROCEDURAL HISTORY
Alexandra Lawson and Jeremy Villarreal were married and have two
minor children, S.J.V. and S.B.V.1 The couple divorced in Indiana in May 2010
and now share joint custody of their children. Pursuant to the separation
agreement, Lawson was the primary residential custodian. After their divorce,
Lawson and Villarreal both remarried and have children with their current
spouses. Eventually the parties agreed that Lawson could move with the
children from Indiana to Northern Kentucky. Because he wanted to be closer
to S.J.V. and S.B.V., Villarreal spent two years expending great effort to be
transferred to Kentucky by his employer. He and his wife sold their house in
Indiana, and she found new employment in the Northern Kentucky area. Not
long after Villarreal’s move to Kentucky, Lawson unilaterally, and without
approval from the Indiana court, moved with her new husband and children to
Mississippi. Villarreal objected to the move and the Indiana court, after
initially ordering that Lawson return with the children to Northern Kentucky,
subsequently concluded that because neither party lived in Indiana it was no
longer a proper forum for the custody dispute. Meanwhile, the separation and
child custody agreements were registered in Kentucky.
In May 2014 Lawson filed a motion in Campbell Family Court to relocate
with the children to Mississippi because her husband had received a promotion
1 As of July 2019, S.J.V. was thirteen years old and S.B.V was eleven years old.
There are no dates of birth in the record, so it is unclear what ages the children are
now.
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that entailed a transfer. Villarreal opposed the motion, citing the great efforts
he had made to move to Kentucky and the long distance between Northern
Kentucky and Mississippi. Additionally, Villarreal feared that the
communication issues he was experiencing with Lawson would only be
exacerbated by the long distance. Villarreal was concerned that Lawson would
not allow him to participate in decisions regarding the children’s upbringing, as
previously agreed to in their joint custody agreement.
At that time, Lawson requested that a relocation evaluation be conducted
in Kentucky by Dr. Jean Deters. Dr. Deters expressed concern about the
parties’ ability to communicate, and Lawson’s feelings of entitlement to be the
primary residential parent, citing her unilateral attempt to move to Mississippi
without court approval. Despite some reservations, the Campbell Family Court
granted Lawson’s motion to relocate on July 29, 2015, pointedly stating that it
hoped its reliance on Lawson’s understanding of the nature of joint custody
was not misplaced. Villarreal remained in Northern Kentucky, and the parties
maintained their custody arrangement, under which the children primarily
resided with Lawson in Mississippi but spent summer break, long weekends
and some holidays with Villarreal in Kentucky.
When the children came to Kentucky to stay with Villarreal for the
summer after S.B.V. completed fourth grade, Villarreal noticed that S.B.V. had
a fourth-grade book for summer reading. On June 29, 2018, Villarreal filed an
emergency motion to prevent Lawson from making S.B.V. repeat the fourth
grade, stating that S.B.V. had maintained an A/B average in the fourth grade.
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Lawson never told Villarreal about her plans to hold S.B.V. back in school, and
had he not seen the book, he may not have known about her plans until after
the new school year started. Villarreal also asked the Campbell Family Court
to modify the custody order to make him the primary residential custodian. On
July 19, 2018, that court, by docket entry, ordered that S.B.V. proceed into
fifth grade and scheduled a hearing on October 26, 2018, on the motion to
modify custody.
On October 1, 2018, Lawson filed a motion for the Campbell Family
Court to cede jurisdiction to Mississippi under Kentucky Revised Statute (KRS)
403.834, claiming Kentucky is an inconvenient forum. By docket entry on
October 9, 2018, the trial court retained jurisdiction. In a subsequent order,
the trial court stated that it made its determination based on the substantial
distance between Kentucky and Mississippi and the inconvenience for both
parties to transfer the case to Mississippi. Additionally, the trial court noted its
familiarity with the lengthy history of the case. Lawson made no further
mention, by motion or otherwise, about the jurisdiction issue until the
Campbell Family Court entered the relocation order on May 28, 2019.
Prior to issuing the order, the trial court conducted hearings on October
26, 2018 and March 29, 2019. The trial court heard from both parties, as well
as S.B.V.’s dyslexia therapist, pediatrician, and two teachers from his school
regarding his education and Lawson’s desire to impose “drug holidays,” or
breaks from taking his ADHD medication. When the children came to spend
the summer with their father in 2018, Lawson only sent a week’s worth of the
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ADHD medication. This placed Villarreal in an impossible situation because
S.B.V. ’s pediatrician was in Mississippi, where the medication is provided,
making it difficult for him to obtain more. Lawson also displayed no regard
toward the fact that it was Villarreal who had to parent S.B.V. during the
summer without his medication. After evaluation, the guardian ad litem for
the children recommended that they relocate to Kentucky and reside primarily
with Villarreal.
As noted, the Campbell Family Court entered a May 28, 2019 order
requiring the children to relocate to Kentucky to live with Villarreal. The trial
court determined that Lawson exhibited behaviors that were adversarial and
strategic, violating the “spirit of joint custody.” Ultimately, the trial court found
that it is in the children’s best interest to reside primarily with the custodian
that would “respect the rights of the other parent to have information and
input with respect to the substantive issues affecting the child.” The trial court
reversed the parties’ parenting schedule and ordered that the children relocate
to Kentucky by August 7, 2019. Lawson filed a motion to alter, amend or
vacate the relocation order, noting that the trial court did not make findings
regarding jurisdiction under KRS 403.834, the inconvenient forum statute for
child custody determinations.
In response, the trial court entered another order on June 28, 2019,
specifically addressing jurisdiction pursuant to KRS 403.834. The trial court
again denied Lawson’s motion to cede jurisdiction to Mississippi, finding that
the children maintain a substantial connection with Kentucky. The trial court
5
acknowledged that because the children primarily reside in Mississippi, most of
the evidence concerning their, school, healthcare and social activities is in that
state, but concluded that Lawson was not prejudiced by having to litigate the
case here. The trial court noted that Villarreal invested great effort and took
considerable measures to move to Kentucky following Lawson’s move to
Kentucky, so he could be near his children. In the trial court’s view, he should
not be required to litigate the case in Mississippi. The relocation to Mississippi
was prompted by Lawson’s husband’s new position, earning $400,000 per year,
which is more than Villarreal and his wife earn jointly. Lastly, given the
lengthy history of this case, the trial court believed it prudent to decide the
issue, rather than task a Mississippi court with spending the time and
resources to become familiar with the case. In any event, the Campbell Family
Court noted that no action had been filed in Mississippi.
In addition to the jurisdiction issue, the trial court made additional
findings regarding its prior relocation order. The trial court reiterated its
determination that Lawson acted in bad faith and in a deceptive manner in
dealing with S.B.V.’s educational circumstance. The court also referenced Dr.
Deters’ earlier relocation opinion wherein she expressed concern about the
history of poor communication between the parties and Lawson’s feelings of
entitlement to be the primary custodian. Dr. Deters feared that this feeling
would interfere with the joint custody arrangement and opined that Villarreal
was more amenable to fully communicating and cooperating in a joint custody
setting. The trial court concluded that “if joint custody is in the children’s best
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interest as agreed upon by the parties, then proper participation in the joint
custodial process is in their best interest.” Therefore, the trial court again
concluded that it is in the children’s best interest to primarily reside with
Villarreal in Kentucky.
On July 16, 2019, Lawson filed a petition for writ of prohibition in the
Court of Appeals to stay the relocation order pending the appeal on the merits.
Lawson simultaneously requested intermediate relief pursuant to Kentucky
Rule of Civil Procedure (CR) 76.36(4) because the trial court had ordered that
the children be relocated by August 7, 2019. Notably, Lawson argued for relief
under the second class of writ cases, requiring a showing that “the lower court
is acting or is about to act erroneously, although within its jurisdiction, and
there exists no adequate remedy by appeal or otherwise . . . .” Hoskins v.
Maricle, 150 S.W.3d 1, 10 (Ky. 2004). The Court of Appeals denied the motion
for intermediate relief, determining that Lawson failed to prove there was no
adequate remedy because her direct appeal from the same orders is currently
pending. The Court of Appeals also stated that Lawson was not entitled to
relief under CR 76.33, the mechanism for seeking intermediate relief once a
direct appeal has been initiated. After the Court of Appeals denied the motion
for intermediate relief on July 24, 2019, Lawson filed a motion to amend her
pending writ petition to argue that the trial court lacked jurisdiction to issue
the relocation order, in essence changing her petition to one for a first-class,
“no jurisdiction” writ.
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In the amended writ petition Lawson maintained that the trial court
lacked subject-matter jurisdiction pursuant to the Uniform Child Custody
Jurisdiction and Enforcement Act (UCCJEA) as codified in KRS 403.800 to
403.880. Specifically, Lawson argued that this case presents questions of first
impression: 1) whether there must be a finding regarding both a significant
connection and substantial evidence as used in KRS 403.824 for continuation
of jurisdiction under the UCCJEA and 2) what constitutes substantial evidence
under the statute. Lawson reasoned that because the trial court determined
that most of the evidence regarding the children’s school, healthcare and social
activities was in Mississippi, the trial court essentially found that the relevant
substantial evidence was located in Mississippi. Therefore, she argued that
Kentucky lacked subject-matter jurisdiction.
The Court of Appeals unanimously denied Lawson’s writ petition. The
appellate court relied on KRS 403.824(l)(a), which states that Kentucky retains
exclusive, continuing jurisdiction over child custody matters unless a Kentucky
court makes a two-part determination: that neither the child and one parent
“have a significant connection with this state" and “that substantial evidence is
no longer available in this state concerning the child’s care, protection,
training, and personal relationships.” The Court of Appeals reasoned that
because the trial court found that Villarreal and the children maintain a
substantial connection with Kentucky by the frequent parenting time that
occurs here, the statutory requirements for exclusive, continuing jurisdiction
were satisfied and therefore Lawson was not entitled to a first-class writ. As to
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her second-class writ argument, Lawson did not prove she lacked an adequate
remedy by appeal because she presently has a direct appeal pending from the
relocation order. Lawson now appeals the denial of the writ petition to this
Court.
ANALYSIS
A writ of prohibition is “extraordinary in nature, and the courts of this
Commonwealth “have always been cautious and conservative both in
entertaining petitions for and in granting such relief.”’ Kentucky Emp’r Mut.
Ins. v. Coleman, 236 S.W.3d 9, 12 (Ky. 2007) (quoting Bender v. Eaton, 343
S.W.2d 799, 800 (Ky. 1961)). As often noted, “courts of this Commonwealth
are — and should be — loath to grant the extraordinary writs unless absolutely
necessary.” Cox v. Braden, 266 S.W.3d 792, 795 (Ky. 2008). This Court has
held that:
[a] writ of prohibition may be granted upon a showing
that (1) the lower court is proceeding or is about to
proceed outside of its jurisdiction and there is no remedy
through an application to an intermediate court; or (2)
that the lower court is acting or is about to act
erroneously, although within its jurisdiction, and there
exists no adequate remedy by appeal or otherwise and
great injustice and irreparable injury will result if the
petition is not granted.
Hoskins, 150 S.W.3d at 10.
Lawson now states that she is proceeding under the first-class of writ
cases because the Campbell Family Court acted outside its jurisdiction when it
issued the relocation order. She points specifically to the trial court’s June 28,
2019 order in which it found that “[s]ince the children spend most of their time
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in Mississippi, most of the evidence regarding school, healthcare and social
activities is in Mississippi.” Lawson argues that this finding alone results in a
loss of exclusive and continuing jurisdiction under KRS 403.824(1)(a), and
hence the Campbell Family Court had no subject-matter jurisdiction.
Typically, we review the decision of the Court of Appeals to deny a writ
under an abuse of discretion standard. Orange Mut Ins. Co. v. Trude, 151
S.W.3d 803, 810 (Ky. 2004). “But when the issue presented involves a
question of law, we review the question of law de novo.” Commonwealth Fin. &
Admin. Cabinet v. Wingate, 460 S.W.3d 843, 847 (Ky. 2015), as modified (May
14, 2015). Thus, our standard of review in this matter is de novo.
Preliminarily, we note that Lawson’s argument has changed throughout
these proceedings. According to the trial court orders, in October 2018 Lawson
filed a motion under KRS 403.834, arguing that Kentucky is an inconvenient
forum. Despite her motion the Campbell Family Court maintained jurisdiction
and issued the relocation order. When Lawson asked the trial court to alter,
amend or vacate the relocation order, she challenged the order on three
separate grounds, one being that the trial court did not make sufficient
findings pursuant to KRS 403.834. When Lawson filed her writ petition, she
initially classified her petition as a second-class writ, arguing that the trial
court had jurisdiction but acted erroneously. Once the Court of Appeals
denied her accompanying motion for intermediate relief, she changed course
and argued that she is entitled to a first-class writ because the trial court
10
lacked subject-matter jurisdiction to modify the custody order. Accordingly, we
will address both first- and second-class writs.
I. Lawson is not entitled to a first-class writ because the trial court
acted within its jurisdiction.
The oft-cited Hoskins v. Maricle standard from 2004 states that in order
to obtain a first-class writ a party must prove the court acted outside its
jurisdiction and that “there is no remedy through an application to an
intermediate court. . . .” Hoskins, 150 S.W.3d at 10. This Court has since
reconsidered the “no remedy” element, concluding that “(o]ne seeking a writ
when the lower court is acting ‘outside of its jurisdiction’ need not establish the
lack of an adequate alternative remedy or the suffering of great injustice and
irreparable injury. Those preconditions apply only when a lower court acts
‘erroneously but within its jurisdiction.’” Goldstein v. Feeley, 299 S.W.3d 549,
552 (Ky. 2009). As for the jurisdiction element, in Goldstein this Court
emphasized that the jurisdiction referenced in the first-class writ standard is
exclusively subject-matter jurisdiction. Id. at 553. Examining the history of
writs in the Commonwealth, we cited, with emphasis, the following passage
from Watson v. Humphrey, 170 S.W.2d 865, 866-67 (Ky. 1943):
Jurisdiction in this connection means jurisdiction of the subject
matter. The respondent unquestionably had jurisdiction to
decide whether a judgment should be vacated or set aside and
to determine its ultimate effect and its conclusiveness as to
other parties. He may have acted erroneously but he was not
acting beyond his jurisdiction.
Goldstein, 299 S.W.3d at 552-53. More recently, in Appalachian Racing, LLC v.
Commonwealth, 504 S.W.3d 1, 4 (Ky. 2016), we stated succinctly: “The first
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class of writs refers to subject-matter jurisdiction; that is, the lower court’s
core authority to hear the case at all.”
Faced with this iron clad emphasis on subject-matter jurisdiction in
order to obtain a first-class writ, Lawson argues that the “exclusive, continuing
jurisdiction” provision of the UCCJEA codified at KRS 403.824(1) presents an
issue of subject-matter jurisdiction. Her sole authority is Officer v.
Blankenship, 555 S.W.3d 449 (Ky. App. 2018), a case in which the Court of
Appeals stated that “jurisdiction under the UCCJEA is in the nature of general
subject matter jurisdiction.” Id. at 458. While we have no quarrel with the
general holding in that case,2 it does not purport to address the specific
UCCJEA provision at issue here. KRS 403.824(1), the statute germane to this
writ petition, addresses the exclusive and continuing jurisdiction of a court
that has previously issued a custody order, a scenario not at issue in Officer.
Officer involved a marital settlement agreement in which the parties
agreed that Kentucky was the “home state” of their children for custody
purposes even though the children had not resided in this state for the period
of time required by statute for Kentucky to qualify as their home state. Id. at
451. The distinction between subject-matter jurisdiction and particular case
jurisdiction was especially important in Officer because while particular case
jurisdiction can be conferred on a court by agreement of the parties (as the
2 As a Court of Appeals’ opinion, Officer v. Blankenship is, of course, not binding
on this Court but we address it to illustrate that its “general subject matter
jurisdiction* conclusion regarding the UCCJEA generally does not address the
exclusive, continuing jurisdiction determination required by KRS 403.824(1).
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parties had attempted to do), subject-matter jurisdiction cannot. Id. at 455. In
that context, the Court of Appeals stated
The UCCJEA regulates “child custody determinations”
which are defined as orders relating to the “legal custody,
physical custody, or visitation with respect to a child[.]” KRS
403.800(3). It outlines when a court can exercise jurisdiction to
make initial custody determinations, as well as the factors
necessary for a court to retain jurisdiction over such matters.
The UCCJEA makes a child’s “home state” of paramount
importance to the jurisdictional question.
Id. at 454. After reviewing the four circumstances in which a Kentucky court
has jurisdiction to make “an initial child custody determination . . . [under]
KRS 403.822,” the Court of Appeals observed that “[o]nce a court with
jurisdiction to make a custody determination does so, it has exclusive,
continuing jurisdiction over the determination,’ KRS 403.824(1), until one of
two things happens.” Id. The Officer court then briefly referenced KRS
403.824(l)(a) and (l)(b), the former of which is at issue on this writ petition,
but the appellate court’s focus was on the jurisdictional prerequisites to make
“an initial child custody determination,” i.e., whether Kentucky would have had
jurisdiction of the parties’ custody dispute absent their attempted agreement to
make it the children’s home state. Id.
Ultimately, the Court of Appeals rejected the father’s argument that
Section 112(6) of the Kentucky Constitution coupled with KRS 23A. 100(c)
vested the Warren Family Court with subject-matter jurisdiction and that “any
limits on its jurisdiction contained in other statutes [such as the UCCJEA]
should be treated as matters of particular case jurisdiction.” Id. at 455. In so
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doing, the Officer court noted that this view aligned with the majority of
jurisdictions that had considered whether the UCCJEA’s home state provisions
pertain to subject-matter or particular case jurisdiction and also arguably with
this Court’s opinion in Adams-Smyrichinsky v. Smyrichinsky, 467 S.W.3d 767
(Ky. 2015). Id. That case, while also not directly on point, bears mention.
In Adams-Smyrichinsky, this Court discussed the “transfer” of
jurisdiction between states under the UCCJEA. The parties in that case were
divorced in Indiana and entered an agreed order regarding custody and child
support. Id. at 768. When the father moved to Kentucky, he filed a petition to
modify custody in a Kentucky family court asking the court to transfer
jurisdiction pursuant to the UCCJEA. Id. at 770. The Kentucky court issued
an order stating that it could accept jurisdiction, but it lacked authority to
order another state to transfer a case. Id. The father then asked the Indiana
court to determine whether it retained jurisdiction, and that court found that it
did not since the parties and children now resided in Kentucky. Id. After the
Indiana and Kentucky court conferred, the Kentucky court accepted
jurisdiction. Id.
While Adams-Smyrichinsky primarily addressed child support and tax
exemptions for dependent children, the Court discussed the actions a
Kentucky court can take under the UCCJEA regarding custody and visitation
when it is not the original state that issued the order. Id. at 772. The Court
explained that in cases where the parties move to Kentucky from another state,
“the case is not ‘transferred’ to Kentucky, as it is commonly stated. Instead,
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the Kentucky court simply asserts its jurisdiction over the custody and
visitation matter under the UCCJEA where the other state has, in essence,
declined jurisdiction.” Id.
A court either has subject-matter jurisdiction in a case or it
does not. As outlined above, once a court of another state has
issued a child custody order, a Kentucky court does not have
jurisdiction over those custody matters unless the other court
subsequently declines jurisdiction. At that point, if the
prerequisites exist for a Kentucky court to exercise jurisdiction,
it simply has jurisdiction. That jurisdiction has not been given
to it by the other court. Though it is a fine distinction, it is
nevertheless an important one.
Id at 774 (emphasis added). Thus, this Court concluded that the Kentucky
court did not have jurisdiction until it both consulted with the Indiana court to
ascertain it had declined continuing jurisdiction, and then made the requisite
statutory findings for jurisdiction in Kentucky. Id.
Here, the Campbell Family Court has properly exercised subject-matter
jurisdiction since 2014 and has issued prior custody orders without objection
from either party. This initial establishment of subject-matter jurisdiction
through compliance with Kentucky statutes distinguishes it from both Officer
and Adams-Smyrichinsky. While the Officer Court may well be correct that the
UCCJEA provisions regarding initial jurisdiction under KRS 403.822 are “in
the nature of general subject matter jurisdiction,” the same is not true of the
exclusive, continuing jurisdiction determination required by KRS 403.824(1)
and at issue in this case. In that instance, like the out-of-state court referred
to in the immediately preceding quote from Adams-Smyrichinsky, a court that
has had and exercised subject-matter jurisdiction in a child custody matter is
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deciding whether it should continue to exercise jurisdiction or whether it
should “decline jurisdiction” over the case due to a change in circumstances.
This determination is manifestly one of particular-case jurisdiction.
In Nordike v. Nordike, 231 S.W.3d 733 (Ky. 2007), this Court explained
the difference between subject-matter jurisdiction and particular-case
jurisdiction:
Often, discussions of jurisdiction concern subject-matter
jurisdiction, or the court's power to hear and rule on a
particular type of controversy. Subject matter jurisdiction is
not for a court to take, assume, or allow. Subject matter
jurisdiction cannot be born of waiver, consent or estoppel,
[and] it is absent only where the court has not been given any
power to do anything at all in such a case... .
Finally there is jurisdiction over the particular case at
issue, which refers to the authority and power of the court to
decide a specific case, rather than the class of cases over which
the court has subject-matter jurisdiction. This kind of
jurisdiction often turns solely on proof of certain compliance
with statutory requirements and so-called jurisdictional facts,
such as that an action was begun before a limitations period
expired. Although a court may have jurisdiction over a
particular class of cases, it may not have jurisdiction over a
particular case at issue, because of a failure by the party
seeking relief to comply with a prerequisite established by
statute or rule.
Id. (emphasis added) (citations omitted). With this distinction in mind we turn
to the continuing, exclusive jurisdiction statute and specifically the subsection
relevant to this case.
KRS 403.824(l)(a) states:
(1) Except as otherwise provided in KRS 403.828, a court of
this state which has made a child custody determination
consistent with KRS 403.822 or 403.826 has exclusive,
continuing jurisdiction over the determination until:
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(a) A court of this state determines that neither the child,
nor the child and one (1) parent, nor the child and a
person acting as a parent have a significant connection
with this state and that substantial evidence is no longer
available in this state concerning the child's care,
protection, training, and personal relationships ....
Lawson argues that Kentucky has lost exclusive, continuing jurisdiction
because the “substantial evidence* referenced in KRS 403.824 is no longer
available in this state and as a consequence the absence of subject-matter
jurisdiction entitles her to a first-class writ. This argument misperceives both
the language and intent of KRS 403.824.
Lawson clearly does not dispute that the Campbell Family Court has
properly exercised jurisdiction over the parties’ custody dispute in the past but
seemingly believes that subject-matter jurisdiction has disappeared by virtue of
this statute. Manifestly, the statute is not self-executing. More accurately, a
Kentucky court that has made a custody determination under the UCCJEA
retains subject-matter jurisdiction; but when the parties’ circumstances
change, as when one or more parties move out of Kentucky, the court must
still decide whether it should continue to exercise jurisdiction over that
particular case, a determination that it alone can make under KRS 403.824.
Indeed, the plain language of KRS 403.824 tasks the Kentucky court that made
the custody determination with assessing its continuing authority given the
criteria outlined. As this Court noted in Nordike, particular-case jurisdiction is
the “kind of jurisdiction . . . [that] turns solely on proof of certain compliance
with statutory requirements and so-called jurisdictional facts . . . .” 231
S.W.3d at 738. This principle plainly applies here: KRS 403.824(1) outlines the
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statutory requirements relevant to exclusive, continuing jurisdiction and
requires the court to make a determination. Simply put, in deciding whether it
continues to have jurisdiction over this case after a change in circumstances,
the Campbell Family Court was exercising the subject-matter jurisdiction it has
had in this case since 2014 in order to make a particular-case jurisdiction
determination given the then-current facts in 2019.
Perhaps the best statement of the principle applicable here, albeit in a
different factual context, is from our decision in Daugherty v. Telek, 366 S.W.3d
463, 466 (Ky. 2012). In that case, Telek sought to dismiss an emergency
protective order issued against him because the family court failed to hold a
domestic violence hearing within fourteen days after the order was issued. He
argued that the trial court’s inaction violated KRS 403.470(4), which in 2009
limited the effectiveness of an emergency protective order to fourteen days. Id.
at 468. The Court of Appeals agreed with Telek and held that the trial court
lost subject-matter jurisdiction by not holding a timely hearing. In reversing
that appellate court decision, this Court explained that “[a] court, once vested
with subject matter jurisdiction over a case, does not suddenly lose subject
matter jurisdiction by misconstruing or erroneously overlooking a statute or
rule governing the litigation.” Id. at 467. Further, “[o]nce a court has acquired
subject matter and personal jurisdiction, challenges to its subsequent rulings
and judgment are questions incident to the exercise of jurisdiction rather than
to the existence of jurisdiction.” Id. at 467. As the Daugherty Court stated, the
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family court’s failure to follow the statute was, “at most, the erroneous exercise
of subject matter jurisdiction - it is not a lack of subject matter jurisdiction
. . . .” Id. at 467.
The same can be said here. Even if the trial court in this case
misconstrued or misapplied KRS 403.824 - an issue we do not and should not
reach on a writ petition - it nonetheless maintained subject-matter jurisdiction.
Lawson has confused “a court’s [allegedly] erroneous action within its
jurisdiction with a court acting outside its subject matter jurisdiction,” just as
the lower court did in Daugherty. Regardless of whether the trial court
correctly applied the exclusive, continuing jurisdiction standard set forth in
KRS 403.824(l)(a) it had the subject-matter jurisdiction to make that
determination and, in fact, was the only court with authority to make that
determination.
On that score, we note that Mississippi has also adopted the UCCJEA,
and its statute states that a Mississippi court cannot modify a child custody
order from another state until “[t]he court of the other state determines it no
longer has exclusive, continuing jurisdiction under Section 93-27-202 or that a
court of this state would be a more convenient forum under Section 93-27-207
. . . .” Miss. Code. Ann. § 93-27-203. The record does not reflect that Lawson
ever attempted to file a custody action in Mississippi, but had she done so this
statute would have posed an obvious obstacle. Until the Kentucky court
determined it no longer had exclusive, continuing jurisdiction, a Mississippi
court was not authorized to act.
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Here the Kentucky trial court determined that it maintained continuing,
exclusive jurisdiction of this case, Le., that it should not relinquish jurisdiction
over this particular case based on the criteria in the statute. That particular-
case jurisdiction determination can be reviewed in the ordinary course of
Lawson’s appeal pending before the Court of Appeals and is not a proper
matter for consideration on a writ petition. More pertinently to the issue before
us, the Campbell Family Court did not lack subject-matter jurisdiction to make
that “exclusive, continuing jurisdiction’’ determination under KRS 403.824(l)(a)
and thus a first-class writ is not available to Lawson.
II. Lawson is not entitled to a second-class writ.
To prove entitlement to a second-class writ, Lawson must show “. . . that
the lower court is acting or is about to act erroneously, although within its
jurisdiction, and there exists no adequate remedy by appeal or otherwise and
great injustice and irreparable injury will result if the petition is not granted.”
Hoskins, 150 S.W.3d at 10. The trial court has entered two final and
appealable orders in this case. Lawson has already initiated a direct appeal
from both orders, and that appeal remains pending before the Court of
Appeals. A writ may not be used as a substitute for appeal or to circumvent
normal appellate procedure. Natl Gypsum Co. v. Corns, 736 S.W.2d 325 (Ky.
1987); Merrick v. Smith, 347 S.W.2d 537 (Ky. 1961). The extraordinary remedy
of a writ is not available when a trial court’s alleged error in the exercise of its
jurisdiction can be addressed in the normal appellate process, which is exactly
the scenario here. Since Lawson has an opportunity for recourse through her
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direct appeal, the Court of Appeals correctly held that the extraordinary relief
of a second-class writ is not warranted in this case.
CONCLUSION
For the foregoing reasons, we affirm the Court of Appeals’ denial of
Lawson’s petition for a writ. Whether the Campbell Family Court erred in
finding it had exclusive, continuing jurisdiction in this custody dispute is an
issue properly addressed in Lawson’s direct appeal pending in the Court of
Appeals.
All sitting. All concur.
COUNSEL FOR APPELLANT:
William David Tingley
WILLIAM D. TINGLEY, PLLC
COUNSEL FOR JEREMY VILLARREAL,
REAL PARTY IN INTEREST:
Deanna Lynn Dennison
DENNISON & ASSOCIATES
G. Keith Gambrel
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